Applications on time, Please !!

Once again, another reminder of Mitchell. The background of this matter is as follows: The Claimant sued the Defendant in respect of losses alleged to have been incurred as a result of a negligent property valuation. The matter was settled in November 2011. One of the terms of settlement, was that the Defendant would pay the Claimant’s costs. On 17 April 2013, a detailed assessment hearing took place before Master O’Hare.

The Defendant however, was not happy with the assessment and asked the Master for permission to appeal. Master O’Hare refused. The Defendant then sought, within time, to appeal this decision. On 29 July 2013, however, Haddon-Cave J. refused permission on paper. Unfortunately however, it appeared the Defendant’s solicitors did not receive the order of Haddon-Cave J, until 10 October 2013, so on 22 November 2013, the Defendant’s solicitors served an application for an extension of time within which to seek an oral renewal of their application for permission to appeal.

On 27 November 2013 the matter came before Blair J. who, having heard representations from the Defendant, not only extended time but also gave the requisite permission. The Claimant however was not represented. The matter thereafter came before Turner J to set aside the order of Blair J, and indeed Turner J, in light of Mitchell’s deliberate “tougher and less forgiving approach,” Turner J had no choice but to overturn Blair J’s ruling. CPR 52.3(5) provides that a request to renew an application for permission to appeal “must be filed within 7 days, after service of the notice that permission has been refused”. The Defendant was well out of time and the Defendant failed to comply with the rules.

Draconian or not, this is the approach that will be adopted following the Court of Appeal in the Andrew Mitchell MP case (Mitchell v News Group [2013] EWCA Civ 1537), when the Claimant failed to file his cost budget in time. Unfortunately, the general approach was to pardon non-compliance if it was possible to remedy any prejudice caused to the other party. The ruling of Tuner J once again, confirms that this is no longer the approach to be adopted. This ruling endorses the Master of the Rolls’ comments in a lecture that preceded implementation of the new rules:

“Parties can no longer expect indulgence if they fail to comply with their procedural obligations. Those obligations… serve the wider public interest of ensuring that other litigants can obtain justice efficiently and proportionately.”

Unfortunately, without beating around the bush, it is time parties get used to strict adherence to the rules. So what can you do? Well, in respect of your costs, ensure that whoever is responsible for the same is:

1. Proficient with the rules in relation to costs.

2. Appreciates the nuances of legal costs.

3. & understands the objectives and technicalities in respect of cost budgeting.